HARSHADRAI O MODY Vs. BANK OF INDIA

JUDGEMENT

(1.) HEARD Mr. Rana, Senior Counsel for the appellant. Mr. Tulzapurkar and Mr. Shetye appear the respondents in both these matters.

(2.) THE first of these two appeals seeks to challenge the order dated 30th April, 2002 passed by a learned Single Judge on the chamber summons taken out by the appellant for a direction against the 1st respondent-Nationalised Bank in an execution application moved by the bank against the appellants. The chamber summons sought a direction that the execution application filed by the 1st respondent-bank may not be transferred to the Debts Recovery Tribunal. The 1st respondent-bank has taken a decree against the appellant in the High Court or Justice, Queens Bench Division in England for an amount of Rs. 2,47,82,743. 40 The execution application was filed along with the certified copy on 6th May, 1998. The debts recovery Tribunal (hereinafter referred to as "the Tribunal") was constituted on 16th July, 1999 under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as "the RDB Act" ). In view of the passing of the said RDB Act and in view of the exclusive jurisdiction granted to that Tribunal for adjudication and recovery of the debts of Nationalized Banks over certain amount, the execution application was being transferred to the Tribunal. At that stage, this chamber summons was taken out to retain the execution in the High Court itself. The chamber summons was rejected by the learned Single Judge by the order dated 30th April, 2002. Similar was the prayer in the other connected matter between the same parties being Chamber Summons No. 37 of 2002. In view of the finding recorded on Chamber Summons No. 38 of 2002, this chamber summons was also rejected by a separate order dated 30th April, 2002. Being aggrieved by both these orders these two appeals have been filed.

(3.) MR. Rana, learned Counsel appearing for the appellant, principally made two submissions. The first submission was that under section 44-A (1) of the Code of Civil Procedure, 1908, a decree passed by a superior Court outside India was treated as a decree passed by a District Court in India and was executable only in a District Court in its original jurisdiction. He submitted that it was a limited legal fiction under the section and an execution of such a decree by the Debts Recovery Tribunal cannot be read into it. The Debts Recovery Tribunal cannot exercise that power. He further submitted that further consequences and incidences beyond what is specifically provided cannot be created under a legal fiction. In this behalf, the learned Single Judge has referred to and relied upon a judgment of the Privy Council in the case of (East End Dwallings Co. Ltd. v. Finsbury Borough Council) reported in 1952 A. C. Privy Council page 109, wherein it is observed---"if you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitable have flowed from or accompanied it". This view is approved in the case of (American Home Products v. Mac Laboratories) reported in A. I. R. 1986 S. C. 137. Under section 17 (1) read with section 2 (g) and section 34 of the RDB Act, the Tribunal has the exclusive jurisdiction to recover these debts and, therefore, legal fiction will have to be deemed to have been extended to authorise the execution of a foreign decree by the Tribunal.